Commonwealth v. Neff

171 A.2d 561, 195 Pa. Super. 420, 1961 Pa. Super. LEXIS 657

• Court: Superior Court of Pennsylvania
• Decided: June 15, 1961
• Docket: Appeals, Nos. 1, 2, 3, and 4
• Status: Published

Opinions

Opinion by

Ervin, J.,

Samuel G. Neff, chairman of the Democratic Party of Beaver County, James S. Macry, secretary of the Democratic Party in Beaver County, Robert Yoho, assistant superintendent of the Pennsylvania Department of Highways, and Leon Kaleta, foreman of the Department of Highways in Beaver County, were convicted of (1) common law extortion and (2) conspiracy to extort money from contractors leasing equipment to the Department of Highways in Beaver County. The court below concluded that Neff and Macry were not public officers or quasi-publie officers within the meaning of the common law relating to extortion and arrested judgment as to them on the extortion charge. After dismissing the motion in arrest of judgment as to Yoho and Kaleta on the extortion charge and as to all defendants on the conspiracy charge and after dismissing the motions for a new trial as to all defendants, the court below imposed sentence upon all four defendants. They have appealed.

From the evidence the jury could have found that Edward Nitsche, who was an employe of the highway department and who plead guilty and was the principal witness for the Commonwealth, was taken to Neff’s home by Yoho sometime in the winter of 1955-56; that shortly after they arrived, Macry came in; that the discussion in Neff’s home related to raising funds for Neff’s campaign; that Nitsche was designated to secure money from contractors whose equipment was being used by the highway department; that Neff said they ought to pay “at least five per cent”; that Neff said Nitsehe knew the county better than anyone else and that he should go and contact the contractors; that in January 1956 Nitsehe began collecting five per cent from contractors who rented the use of equipment to the highway department; that on one occasion a contractor named Roceo paid Nitsehe $200.00; that he said to Nitsehe, “You know yon can be arrested for this.”; that Nitsehe reported to Neff what Roceo had said and Neff told Nitsehe, “Well, don’t ask him for anything more”; that Edward Biardo told Nitsehe, “l will give $1000.00 toward the campaign if you get me a grader on for summer work”; that Nitsehe informed Neff of the offer and Neff said, “Well, go ahead and see if you can get an agreement through for him”; that Yoho and Kaleta collected money from renters of equipment and they gave the money to Nitsehe; that Nitsehe delivered the money to Neff with a paper showing who had paid the money; that on two occasions Nitsehe turned the money over to Maery pursuant to the understanding at the initial meeting; that subsequently Neff told Nitsehe, “Turn the money over to me. I don’t trust Macry”; that Neff instructed Nitsehe not to cancel agreements but if contractors did not pay, not to let them work; that Nitsehe secured from the payroll clerk a list of the amounts paid to contractors, thereby enabling him to compute the five per cent to be collected by him; that subsequently Nitsehe secured the checks from the chief clerk and delivered them to the contractors from whom he collected; that Harry Harden arranged with Neff to put his equipment on highway work; that Yoho and Nitsehe requested that Harden pay five per cent; that he refused to do this and his equipment was not used after the spring of 1957; that Nitsehe told Leland Peters, who had equipment on highway work in May 1956, that he would have to kick back five per cent; that Petei’s refused to do so and was replaced by a Democratic committeeman; that Clarence Corbin agreed with Nitsche to pay five per cent for the benefit of the party; that he paid money to Nitsche, Yoho and Kaleta;.that Nitsche told Grayn Denny in January 1956 that there had been a meeting with Neff and Macry and they decided the contractors should pay five, per cent for campaign funds; that Denny paid five or six hundred dollars,; that Kaleta had told Denny to pay the money. ■ before Nitsche had approached him; that Denny paid on one occasion when Neff was present and Nitsche said to Neff, “I have yours”; that in January 1958 Denny picked up four five per cent checks from Carl Tragesser, Sr.; that previously Kaleta had said to him, “You can be replaced; you collect it or else”; that Edward Walton testified that Nitsche approached him relative to the five per cent payments and told him he would have to kick in or he wouldn’t work; that John S. Brkich said Yoho told him he should inform Joseph Bogovich that it had been decided that Bogovich should give five per cent for a fund for campaign purposes; that Brkich collected and paid the money to Yoho; that Bogovich, on another occasion, paid money to Nitsche in the presence of Buttermore, the superintendent of the highway department; that Buttermore was present when Mrs. Corbin gave money to Nitsche; that in the latter part of 1956 Buttermore observed Nitsche, on two occasions, giving money to Neff; that Hasenkopf, a superintendent in the county, said he observed Nitsche giving money to Neff on one occasion; that the names of Harden, Corbin, Denny and Walton do not appear as contributors in any political campaign expense account filed in the Bureau of Elections of Beaver County ,for the primary or election of any pertinent year.

Counsel for tlie appellants first argued that the court erred in ruling that the six-year statute of limitations was applicable to the crime of extortion by a public officer or employe and to the crime of conspiracy to extort. The Act of April 6, 1939, P. L. 17, §1, 19 PS §211, amended the Act of 1860 as follows: “. . . And provided also, That indictments for malfeasance, misfeasance, or nonfeasance in office, or for extortion or blackmail by color of office, or for embezzlement of public moneys or property or fraudulent conversion of public moneys or property, or for any misdemeanor in office, or for any conspiracy to commit any of said offenses heretofore or hereafter committed by any officer or employe of this Commonwealth or of any agency thereof, or of any city, county, borough, township, or school district or of any agency thereof, and their accomplices and confederates, may be brought or exhibited at any time within two years from the time when said public officer or said employe shall have ceased to occupy such office or such employment, but in no event more than six years from the commission of the offense.” (Emphasis supplied) It is argued that “The provision of two years from the leaving of office or employment and its alternative of in no event more than six years from the date of the offense cannot stand alone. Its construction requires the addition of these words — ‘whichever is shorter.’ ’ The only defendant in the extortion charge to which this argument applies is Robert Yoho. lie left office on March 29, 1957 and was not indicted until September IS, 1959. It is argued that since more than two years intervened after he left office that the 1939 amendment does not apply and that the statute of limitations is two years in his case. We do not agree with this argument. The indictment was presented or found within six years from the commission of the offense and the amendment of 1939 is applicable to his case.

Counsel have not furnished the court with any appellate court decisions interpreting the 1939 amendment as applied to the facts of this case. Our independent research has revealed no appellate court decision on this point. It is our opinion that the legislature never intended an interpretation such as is now presented by counsel for the appellants. We believe that it was the intention of the legislature to fix a six-year period of limitation from the commission of the offense, notwithstanding the fact that the indictment may have been presented or found more than two years after the officer or employe left his employment. If we were to adopt the reasoning suggested by the appellants, we would be obliged to rule as follows :

Offense Left Employment Indictment Found

A Jan. 1,1956 Jan. 1,1957 Jan.1,1960

B Jan. 1,1952 Jan. 1,1957 Jan. 1,1958

A could not be indicted because he left his employment more than two years before the indictment was found. In A’s case the indictment was found within four years of the offense. B could be indicted because he left his employment one year before the indictment and the indictment was within six years of the commission of the offense. A, who was indicted four years from the offense, would go free and B, who was indicted six years from the offense, would have to stand trial. Certainly the legislature never intended such an absurd result. See Act of May 28, 1937, P. L. 1019, art. IV, §52, 46 PS §552(1).

It is also argued that the general two-year statute of limitations (two years from the last concerted action) is applicable to tbe charge of conspiracy to extort and not the six years from the date of the offense. Com. v. Parish, 176 Pa. Superior Ct. 267, 107 A. 2d 203, and Com. v. Kauffman, 190 Pa. Superior Ct. 444, 154 A. 2d 269, are cited in support of this position. Neither of these cases interpreted the 1939 amendment with which we are here concerned. These cases involved the amendatory Act of May 16, 1945, P. L. 582, No. 238, §1, 19 PS §213, which contained the express provision that “The provisions of this section shall not be construed so as to apply to indictments for any felony or misdemeanor other than those as to which any of the foregoing relationships to a bank, body corporate or public company, ... is an essential element of the crime.” The Court in those cases correctly ruled that the six-year limitation provided by the Act of 1945 is applicable only when the named relationship to a body corporate or a public company is an essential element of the crime. No such express provision is contained in the 1939 amendment here under consideration. The 1939 amendment is made expressly applicable to officers or employes of the Commonwealth and their accomplices and confederates. If some of the defendants were officers or employes, the 1939 amendment would be applicable to their accomplices and confederates on a charge of conspiracy to extort.

It is also argued that the court below erred in ruling that Leon Kaleta was a quasi-public officer. Kaleta was foreman of the Pennsylvania Department of Highways in Beaver County. His position cloaked him with authority to use certain contractors’ equipment or not to use it. Common law extortion can be committed by a quasi-public officer: 35 C.J.S., Extortion, §9; 22 Am. Jur., Extortion and Blackmail, §8. See also Com. v. Saulsbury, 152 Pa. 554, 25 A. 610; Com. v. Miller, 94 Pa. Superior Ct. 499; Com. v. Gettis, 166 Pa. Superior Ct. 515, 72 A. 2d 619. If Kaleta was less tliau a public officer, he was nevertheless more than a mere employe. He was a quasi-public officer and as such could be guilty of common law extortion.

Action under color of office is referred to in Com. v. Channing, 55 Pa. Superior Ct. 510, 516, as follows: “Amongst the judicially recognized definitions of color of office, applying to the differing states of facts that may arise, are: a pretense of official right to do an act, made by one who has no such right; the use of official authority as a pretext or cover for the commission of some corrupt or vicious act; an act wrongfully done by an officer under the pretended authority of his office: 7 Cye. of Law & Pro., 401; Com. v. Wilson, 30 Pa. Superior Ct. 26. The last definition furnishes the test to be applied here.”

Kaleta, in our opinion, was a quasi-public officer. He acted as if he were a public officer.. He and his confederates exercised the power to determine who did receive contracts with the State Highway Department and who did not, and who worked and who did not. In a practical sense he and his confederates possessed and exercised the basic and fundamental power in that regard.

Other examples of persons whose position of authority was sufficient to render them liable to prosecution for the offense of extortion at common law are Com. v. Bernstine, 308 Pa. 394, 162 A. 297, attorney-at-law; Com. v. Wilson (No. 1), 30 Pa. Superior Ct. 26, captain of police in the City of Allegheny; Com. v. Channing, supra, coal and iron policeman paid by private coal company; Com. v. Norris, 87 Pa. Superior Ct. 61, chief of the police of the Borough of Emporium; Com. v. Ruff, 92 Pa. Superior Ct. 530, chief of police and attorney-at-law; Com. v. Fickes, 105 Pa. Superior Ct. 199, 160 A. 142, constable of the City of York.

The Tenal Code of June 24, 1939, P. L. 872, §1101, 18 PS §5101, provides: “Every offense now punishable either by the statute or common law of this Commonwealth and not specifically provided for by this act, shall continue to be an offense punishable as heretofore.”

Although extortion as it is defined at common law was not specifically provided for in The Penal Code, it is a part of the common law of this Commonwealth and thus continues to be an offense punishable as heretofore. See Com. v. Wilson (No. 1), supra. In Com. v. Bausewine, 354 Pa. 35, 46 A. 2d 491, it was held that the chief of police of the Borough of Norris-town, while not an officer of the Commonwealth within the meaning of §303 of The. Penal Code of June 24, 1939, P. L. 872, 18 PS §4303, relating to bribery, did occupy such a position as to be subject to indictment, trial and conviction for bribery at common law.

In Com. v. Benedict et al., 114 Pa. Superior Ct. 183, 173 A. 850, defendant was charged with bribery for having paid money to an inspector for the Pennsylvania Alcohol Permit Board in an indictment containing the phrase “contrary to the Act of Assembly” and his demurrer to the indictment, on the ground that the inspector was not an “officer of the Commonwealth” or a “public officer” within the meaning of the statutes, was overruled by the trial court. We affirmed the ruling that the defendant could be proceeded against at common law and that the indictment was good as drawn.

While defendants were tried on the theory of quasi-public officers, the verdicts can be sustained by viewing the designation of their offices as surplusage. It is a well established rule of criminal pleading that all unnecessary words may be rejected as surplusage if the indictment would be good after they were stricken out: Com. v. Bristow, 185 Pa. Superior Ct. 448, 459, 138 A. 2d 156. We therefore agree with the conclusion of the court below that the defendants, except Neff and Macry, did commit the common law offense of extortion.

Counsel for appellants also argue that the court below erred in ruling that there was sufficient evidence to establish the crime of conspiracy to extort. A mere recitation of the facts as they could be found by the jury is sufficient to refute this argument.

Counsel for appellants also complain of 13 trial errors which they contend mate necessary a new trial. We do not intend to specifically refer to these. We have carefully reviewed the entire record and are convinced that there is no justification for any of these 13 charges. This case was tried very ably by Judge Morgan H. Sohn. He was at all times impartial and more than fair to the defendants. In his charge, comprising approximately 50 typewritten pages, he not only clearly covered the law as applied to common law extortion and conspiracy to extort but he thoroughly covered the law on such subjects as the burden of proof, reasonable doubt, the testimony of an accomplice, alibi testimony, testimony of good reputation, etc. He also gave a very complete recitation of the testimony of the witnesses of the Commonwealth as well as the defendants. We are convinced that the defendants received a fair trial and were justly convicted.

Judgments of sentence are affirmed and it is ordered that appellants appear in the court below at such time as they may there be called and that they be by that court committed until they have complied with their sentences or any part thereof which had not been performed at the time the order of supersedeas was entered.